Mediate versus Immediate Possession

A family owns a flat in Pune and lets it to a young couple. The couple go to work each morning and leave the flat with a domestic worker who cleans it. Who possesses the flat? The domestic worker has the keys and is inside all day, but only as the couple's helper; she claims nothing. The couple live there, pay rent and would shut the door on anyone, including the landlord, who tried to walk in uninvited. The landlord lives elsewhere, yet the flat is still in a real sense in his possession: he holds it through the couple, and at the end of the lease it must come back to him. The couple have immediate possession; the landlord mediate possession; the worker custody. Note 30 introduces the distinction; this note works it out.

1. The Distinction Stated

Salmond explains that possession may be held directly, by the possessor himself, or indirectly, through the agency of another. Immediate possession is the direct relation: the possessor himself exercises control and holds the thing with the animus to exclude others. Mediate possession is the indirect relation: the possessor exercises his claim through another person, who is in direct contact with the thing but whose holding is attributed, wholly or partly, to the mediate possessor.

The test of mediate possession is acknowledgment. The immediate holder recognises the other's better right and holds subject to it: he will return the thing, account for it or hold it at the other's direction. If he repudiates that right and begins to hold against the other, the mediate possession ends and the immediate holder's possession becomes adverse. That is why a thief is never an intermediary for the owner, while a borrower is. German law gives the idea statutory form: the German Civil Code (section 868) calls it indirect possession (mittelbarer Besitz), held by one who stands to the direct possessor in a relationship, such as a lease, deposit or pledge, under which the direct possessor holds for a time.

2. Salmond's Three Forms of Mediate Possession

Salmond classifies mediate possession by the interest of the intermediary and by when he must give the thing up.

First: through an agent or servant

The intermediary holds solely on the possessor's account and claims nothing for himself: the servant with his master's tools, the driver with his employer's car, the shop assistant with the stock. Here the holder has no animus of his own, so the law gives him custody only, and the possession is the master's alone (Note 80). The master's possession is still exercised through another pair of hands, which is why Salmond lists it as a form of mediate possession; but there is only one possessor in law. The criminal law adopts the same view: property in the possession of a person's wife, clerk or servant on his account is in that person's possession (formerly Section 27 IPC).

Second: through one who holds for both, returnable on demand

The intermediary holds both on his own account and on the mediate possessor's, but recognises the latter's superior right to take the thing back whenever he chooses to demand it, as with a book lent to be returned on request or a tenant at will. The borrower has immediate possession; the lender keeps mediate possession through him.

Third: through one who holds for himself until a time or condition

The intermediary claims the thing for himself until some time has elapsed or some condition has been fulfilled, but acknowledges the other's title and will return it when his claim ends. Salmond's examples are a loan for a fixed period and a pledge: the pawnbroker keeps the watch as security until the debt is paid. A bailee with a lien, such as a repairer who keeps the article until his charges are paid (s.170 Contract Act), and a tenant for a term stand in the same position. Each has immediate possession, exclusive even of the mediate possessor while his right lasts.

3. Concurrent Possessions

Mediate and immediate possession of the same thing exist at the same time without contradiction, because they are exercised in different ways and are not adverse to each other. The tenant possesses the flat immediately; the landlord possesses it mediately; both possessions are real and both are protected, each in its own way. There may be several tiers: if the landlord lets to A and A sublets to B, B has immediate possession, and A and the landlord each have mediate possession, A through B and the landlord through A and B. Concurrent possession in this vertical sense must be distinguished from co-possession, where two or more persons, such as co-owners or partners, share immediate possession of the same thing side by side. What cannot coexist is two adverse claims to exclusive immediate possession: if a trespasser ousts the tenant, both the tenant and the landlord lose possession, and only one person, the trespasser, possesses.

4. Relation to Custody

The first form of mediate possession overlaps with the distinction between possession and custody (Note 80). A servant's holding is custody, not possession; the master possesses through him. The second and third forms are different: the pledgee and the tenant are not custodians but possessors in their own right, because they hold with an animus of their own and have an interest the law protects even against the mediate possessor. The line therefore runs as follows: where the intermediary has custody, there is one possessor; where he has immediate possession, there are two, one immediate and one mediate. Savigny, who demanded animus domini, denied possession to tenants and borrowers altogether; Salmond's scheme of mediate possession is his way of giving both the holder and the owner a place (Notes 30 and 68).

5. Legal Consequences

Protection of the immediate possessor

The immediate possessor is protected against strangers and, during his term, against the mediate possessor himself. Under s.180 of the Contract Act, if a third person wrongfully deprives the bailee of the goods or injures them, the bailee may use the remedies the owner could have used; either bailor or bailee may sue, and under s.181 the relief is divided between them according to their interests. A tenant or licensee in settled possession cannot be thrown out even by the owner except by due process, and one dispossessed otherwise than in due course of law may recover possession within six months under s.6 of the Specific Relief Act 1963 (Note 79).

Theft of one's own goods

Because the pledgee has immediate possession, the pledgor who takes back the pledged article without paying commits theft though it is his own property, as the illustration to the theft section shows (Section 303 BNS, formerly Section 378 IPC; Note 79). Conversely, a servant who runs off with goods in his mere custody takes them out of the master's possession, which is why his offence is theft rather than criminal breach of trust, unless he was entrusted with dominion over them (Note 80).

Delivery without movement

Mediate possession explains constructive delivery (Note 30). In constitutum possessorium the seller keeps the goods as the buyer's bailee: he converts his own immediate possession into immediate possession on the buyer's account, and the buyer acquires mediate possession. In attornment a warehouseman who held for the seller acknowledges the buyer, so mediate possession passes to the buyer without the goods moving. In traditio brevi manu the borrower who buys the thing he already holds ends the lender's mediate possession and becomes sole possessor. The Sale of Goods Act 1930 accommodates all three: delivery may be made by anything that puts the goods in the possession of the buyer or of a person authorised to hold them on his behalf (s.33).

Limitation, estoppel and adverse possession

The possession of the immediate holder counts as the possession of the mediate possessor. A landlord is in possession through his tenant, so time does not run against him while the tenant pays rent; the tenant cannot turn his possession adverse without an open repudiation of the landlord's title brought home to him. The law of evidence adds the estoppel of tenants: a tenant may not, during the tenancy, deny the title of the landlord who let him in (formerly Section 116 Evidence Act, carried into the BSA). These rules protect the acknowledgment on which mediate possession rests.

6. Evaluation

The distinction solves a problem that defeated Savigny's theory: how both the tenant and the landlord can sensibly be called possessors. It gives the immediate holder the protection he needs to enjoy the thing and preserves the mediate possessor's claim, and it explains constructive delivery, the limitation rules and the criminal law in a single idea. Its limits are that the first form sits awkwardly with the rule that a servant has only custody, and that whether an intermediary acknowledges another's right or holds adversely is often a hard question of fact.

7. Frequently Asked Questions

Q. Can a person possess a thing he has never touched?
A. Yes. A mediate possessor may never have handled the thing: a landlord who bought a let flat, or a buyer of goods held by a warehouseman who has attorned to him, possesses through the person in immediate possession.

Q. Can the immediate possessor keep the thing from the mediate possessor?
A. Yes, for the duration of his right. A tenant can exclude his landlord during the lease and a pledgee can keep the pledge until paid; the mediate possessor's claim is to recover the thing when that right ends, by due process.

Q. What ends mediate possession?
A. Anything that ends the intermediary's acknowledgment: his open repudiation of the mediate possessor's right, or the loss of the thing to a stranger who holds adversely. The return of the thing to the mediate possessor turns his mediate possession into immediate possession.

See also: Note 30 (possession), Note 80 (possession versus custody), Note 79 (possession versus ownership), Note 68 (Savigny versus Jhering), Note 31 (ownership), Note 129 (corporeal versus incorporeal possession and ownership).